Walton v Guardian Protection Services (Aust) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Walton v Guardian Protection Services (Aust) Pty Ltd [2024] NSWPIC 107
APPLICANT:	Stephen Walton
RESPONDENT:	Guardian Protection Services (Aust) Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	7 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for accepted injuries to the cervical spine and both shoulders, together with a disputed consequential condition to the left knee alleged to result from the accepted injuries; claim for compensation pursuant to section 66; consideration of applicant’s statement, medical reports and other treatment records, as well as claim correspondence; consideration of whether the applicant sustained a consequential injury to his left knee resulting from his accepted injuries, during exercise physiology sessions in late 2021/early 2022; Shao Wen Zheng v Guo Yong Yang & Ors, Nguyen v Cosmopolitan Homes, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Kennedy Cleaning Services Pty Ltd v Petkoska, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Galluzzo v Commonwealth Bank of Australia, North Coast Area Health Service v Felstead, Corestaff Australia NSW Pty Limited v Lashbrook, Drca v KAB Seating Systems Pty Ltd, Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited, and Jaffarie v Quality Castings Pty Limited considered; Held – the applicant has sustained a consequential injury to his left knee resulting from his accepted injuries, during exercise physiology sessions in late 2021/early 2022; the determination of the applicant’s whole person impairment will be remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential injury to his left knee resulting from his accepted 22 March 2020 (deemed date) injury, during exercise physiology sessions in late 2021/early 2022. The Commission orders: 1. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 22 March 2020 (deemed); (b) body systems/parts: cervical spine, right upper extremity (shoulder), left upper extremity (shoulder), left lower extremity (knee), and (c) method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) this Certificate of Determination; (b) the Application to Resolve a Dispute and attached documents, and (c) the Reply lodged by the respondent and attached documents. 3. Following the completion of the medical assessment process, the matter will be listed before me again for a preliminary conference in order to deal with all outstanding disputes in the matter.

STATEMENT OF REASONS

BACKGROUND

Stephen Walton (the applicant) is 43-years-old. He was employed by Guardian Protection Services (Aust) Pty Limited (the respondent) as a labourer between November 2018 and December 2020, during which time he sustained injuries to his cervical spine and both shoulders, as a result of undertaking his normal arduous employment duties with it.
The respondent has accepted that these injuries are compensable and fall within s 4 of the Workers Compensation Act 1987 (1987 Act). It initially made relevant payments to the applicant for weekly benefits compensation and for his expenses pursuant to s 60 of the 1987 Act, with respect to the injuries. The parties agree that the relevant deemed date of injury is 22 March 2020.
The applicant alleges also however that while he was undergoing rehabilitation treatment with respect to the injuries (specifically training under the guidance of an exercise physiologist, Nick Barry), he sustained a left knee injury, which is therefore consequential to and results from the accepted cervical spine and shoulder injuries.
The respondent (on 17 October 2022) issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in relation to the applicant’s alleged left knee injury. It then maintained its decision in a review outcome notice issued under s 287A of the 1998 Act dated 7 November 2022.
This respondent had previously issued an earlier notice under s 78 of the 1998 Act dated
20 July 2022, by which it determined to cease paying weekly benefits compensation to the applicant (in relation to his accepted cervical spine and shoulder injuries) from
31 October 2022. It also maintained its determination in this regard in a review outcome notice issued under s 287A of the 1998 Act also dated 7 November 2022.
The applicant then made a claim for lump sum compensation pursuant to s 66 of the 1987 Act, in which he relied upon assessed impairments to his cervical spine, right upper extremity (shoulder), left upper extremity (shoulder), and left lower extremity (knee). The claim was made by letter dated 28 February 2023 and was based upon an assessment provided by
Dr Bodel of 21% whole person impairment.
The respondent (on 2 June 2023) issued a further notice denying liability under s 78 of the 1998 Act for the applicant’s claim pursuant to s 66 of the 1987 Act, specifically confirming its denial of liability in relation to the applicant’s alleged left knee injury, as well as disputing the level of the applicant’s whole person impairment as assessed by Dr Bodel (instead relying upon an assessment of 0% whole person impairment in this regard which had been provided by Dr Rimmer).
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission), the applicant requests that the Commission determine his entitlement pursuant to s 66 of the 1987 Act. The ARD also claims weekly benefits compensation from
1 November 2022, as well as payment of various expenses of the applicant’s in accordance with s 60 of the 1987 Act.
The dispute came before the Commission for a preliminary conference on 14 December 2023, when the respondent confirmed that it did not deny that the applicant sustained injuries to his cervical spine and both shoulders on 22 March 2020. It had no objection to a referral being made to a Medical Assessor appointed by the President of the Commission for the whole person impairment in relation to those injuries be to be assessed. However, it maintained its denial of liability in relation to the applicant’s alleged left knee injury. The Commission would need to determine liability in relation to that injury before the relevant Medical Assessment referral could be made.
At the preliminary conference, it was agreed between the parties and the Commission that the determination of the applicant’s claims in the ARD for weekly benefits compensation and expenses pursuant to s 60 of the 1987 Act would await the relevant Medical Assessment. In this regard, the level of whole person impairment found by the Medical Assessor would be potentially relevant to the applicant’s ability to claim weekly benefits compensation pursuant to s 38 of the 1987 Act.
The dispute was therefore listed for conciliation/arbitration from the preliminary conference with an order that the sole matter for determination at the conciliation/arbitration would be liability for the applicant’s alleged left knee injury.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute, and is the only issue to be determined at the conciliation/arbitration:
(a) did the applicant sustain a consequential injury to his left knee, resulting from his accepted 22 March 2020 (deemed date) injury, during exercise physiology sessions in late 2021/early 2022.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A conciliation conference was held in the dispute before the Commission on
30 January 2024. On that occasion, Ms Nicole Compton of counsel appeared for the applicant instructed by Ms Jaglic. The applicant was present. Mr Stephen Hickey of counsel appeared for the respondent, instructed by Ms Mikaelian and Ms Tsafis. Ms Matea, from the respondent’s insurer, was also present. As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
The issue in dispute (see paragraph 12 above) was agreed upon between the parties, and it was also agreed that if the Commission determined that issue in favour of the applicant, there would be a referral to a Medical Assessor appointed by the President of the Commission for that Medical Assessor to assess the level of the applicant’s whole person impairment in relation to his right upper extremity (shoulder), left upper extremity (shoulder), cervical spine, and left lower extremity (knee). It was further agreed that if the Commission determined the issue in favour of the respondent, there would be referral to a Medical Assessor appointed by the President of the Commission for that Medical Assessor to assess the level of the applicant’s whole person impairment in relation to only his right upper extremity (shoulder), left upper extremity (shoulder), and cervical spine. It was finally agreed that the deemed date of injury to be advised to the Medical Assessor was 22 March 2020, and that the Medical Assessor would have access to the documents admitted into evidence at the arbitration hearing before me (see paragraph 17 below).
Following the completion of the medical assessment process, the dispute would be listed back before me for a further preliminary conference, in order to conciliate, and if necessary determine, all the applicant’s outstanding claims in the ARD.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents, and
(b) the respondent’s Reply (Reply) and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

Much of the evidence presented in the ARD relates to the applicant’s accepted injuries to his shoulders and neck, or to the applicant’s claims for weekly benefits compensation or expenses pursuant to s 60 of the 1987 Act. I have considered all the evidence, but will be concentrating on reviewing the specific evidence relevant to the issue that I need to determine regarding the applicant’s left knee condition.
The applicant has provided a signed statement dated 30 October 2022 (found at page 6 of the ARD).
The applicant details his educational, employment, and medical histories. He worked for the respondent between November 2018 and December 2020. He had not sustained any serious injuries or incapacitating illnesses prior to his employment with the respondent.
He then details the “repetitive and laborious” nature of his work with the respondent, which led to him developing pain in his neck and shoulders, such that he initially ceased working and reported his injury to the respondent, in March 2020. He then stopped working permanently on 16 October 2020.
His treatment for his neck and shoulder injuries has included physiotherapy, cortisone injections, and medication. Dr Tan has also operated on each shoulder.
He says that he sustained a left knee injury:
“which was related to my physical rehabilitation in the course of my shoulder recovery. I was instructed by the exercise physiologist to do a squat using a dumbbell between my legs. I was also instructed to do leg extensions, leg curls and I felt discomfort as he did this over the posteromedial aspect of the knee.”
He says that his exercise physiology treatment was with Nick Barry, and that it finished on
16 May 2022.
He also says that since his left knee injury, he has not been able to exercise properly, and as a result has gained weight. He cannot walk properly, and finds it especially difficult to traverse stairs. He gets a “click” in his left knee as well as tightness in the muscles around the knee.
He finally outlines in his statement his physical restrictions resulting from the injuries to his neck, shoulders, and left knee.
The ARD (at page 291) attaches the request to the respondent’s insurer for the applicant to undergo exercise physiology sessions with Nick Barry. The request is dated
1 December 2021 and it states as its rationale for these exercise physiology sessions requested:
“Physiotherapist and exercise physiologist agree a more active program looking to build muscle and muscular strength is needed to build Stephen’s functional abilities. Looking at achieving 25 kg floor to waist lift…9 kg overhead press…17.5 kg per arm dumbell chest press by end of this AHRR. Gym membership so he can start to become independent doing his own exercises.”
A report has also been obtained from Nick Barry (from Ultimate Conditioning) dated
13 October 2022. It is found at page 351 of the ARD.
Nick Barry commences by stating:
“There was NO [emphasis in original] acute, traumatic injury during any Exercise Physiology sessions I conducted with Stephen…There is nothing in my notes about such an event and I have no recollection of such an event. I would remember if there was.”
Nick Barry then however advises that the applicant developed “slight” knee pain in February 2022. At that time, the applicant was training with Nick Barry once per week, as well as training twice per week on his own, as well as riding his bike. Nick Barry referred the applicant to his general practitioner, and is aware that radiological testing was then performed upon his left knee.
The applicant then only trained with Nick Barry once between 21 February 2022 and
25 March 2022. From 25 March 2022 until his final session with Nick Barry on 16 May 2022, “leg weights were reintroduced at a lighter weight than previous”. Nick Barry states that the applicant progressed well during this period.
Nick Barry explains the squatting that the applicant would have performed during the applicant’s training sessions with him:
“Stephen did NOT [emphasis in original] ever do a goblet squat under my supervision. The squat he would do is picking a dumbbell up off the ground from a squat position. A squat mimicking picking up a box or object from the floor in the workplace. The range of the squat is only a half range squat and the weight did not exceed 20kg from March – May 2022.”
Nick Barry states that he has not treated the applicant since 16 May 2022, but is aware that the applicant had physiotherapy treatment after that date. He quotes notes from a physiotherapist that refer to the applicant lifting heavier each week and undertaking 100km bike rides, and he suggests to the respondent’s insurer that a “closer look” at the applicant’s activities after 16 May 2022 should be taken.
There are a number of reports in the ARD from the applicant’s treating specialist, Dr Tan. The reports cover the period between 26 August 2020 and 13 October 2022. A perusal of the reports reveals:
(a)    the 15 February 2022 report (at page 105) does not mention any left knee symptoms of the applicant’s – it refers to his rehabilitation with respect to his shoulder injuries being incomplete and that he is training in a gym three times per week under the guidance of an exercise physiologist;
(b)    the 24 May 2022 report (at page 106) again does not mention any left knee symptoms of the applicant’s – it refers to his exercise program (written by Nick Barry) as “working”;
(c)    the 25 August 2022 report (at page 107) records the following:
“The other concern is his left knee. In the course of his shoulder recovery, he was instructed by the exercise physiologist to do a goblet squat. He felt discomfort as he did this over the posteromedial aspect of the knee which has required treatment and still causing pain”, and
(d)    the 13 October 2022 report (at page 112) recommends that the applicant undergo a left knee arthroscopy, following Dr Tan’s perusal of left knee MRI scan results - the doctor describes the results as follows:
“He has knocked off a few loose bits of cartilage that I have shown him around the knee with irregularity to the inner medial meniscus but his lateral joint pain is due to a stress fracture at the posterior lateral femoral condyle. He has had a DEXA since excluding pre-existing soft bone so the only precipitant I can see that has caused excessive load to the lateral side of the femoral condyle is the goblet squat which he feels caused the problem. As you know, he was asked to do this by his exercise physiologist, felt something give at the time and it has been painful since.”
There is also an important (as it relates to an examination of the applicant during the time when he was training with Nick Barry) report from Dr Muratore dated 10 February 2022 (found at page 143 of the ARD). The applicant was examined by the doctor as arranged by the respondent’s insurer, in order to assess his neck and shoulder injuries.
The doctor takes a history that at the time, the applicant was training with an exercise physiologist on a weekly basis and attending a gym independently twice per week. He also takes a history that since attending the exercise physiologist, the applicant had been experiencing pain in the anterior aspect of his left knee. There had been no specific traumatic event, and no mechanical symptoms or swelling were found. The pain was said to be relieved by stretching.
On examination, the doctor found a full range of movement in the left knee, together with no knee joint effusion, no joint line tenderness, no patellofemoral crepitus, and no evidence of ligamentous instability. The doctor however opines:
“He did report knee pain with the examination being normal. On the balance of
probabilities this may be related to the exercise programme and is muscular pain. He does not have any objective clinical evidence of intra-articular pathology in either knee.”
There are other contemporaneous records in relation to the applicant’s complaints of left knee symptoms in the ARD, as follows:
(a)    report from Actual Rehab following an assessment of the applicant (also arranged by the respondent’s insurer) on 19 May 2022 (at page 285) – the report records:
“Mr Walton reports a non-compensabile left knee injury, however, reports that he attributes this pain to weight training. Mr Walton reports his left patella is tracking incorrectly, with his EP prescribing exercises for stability and muscle conditioning. Mr Walton to self-manage moving forward” -
the report also records restrictions of the applicant’s with regard to walking, kneeling, squatting, and crawling due to his left knee condition – and it describes the applicant as an avid cyclist who “engages in events for distance when they are local”;
(b)    reports from Dr Black dated 28 February 2022, 14 March 2022, and
19 August 2022 (at pages 114-116) confirming left Baker’s cyst aspirations on those dates - respectively approximately 10ml, approximately 10ml, and 25ml;
(c)    report from Dr Kuo dated 7 September 2022 (at page 117) confirming a cyst aspiration of approximately 23ml on that date, as well as a steroid injection into the cyst;
(d)    left knee CT scan report dated 23 February 2022 (at page 122) which refers to “pain and swelling ? Baker’s cyst” as a clinical note, and which finds a subluxed patella, pre-patellar oedema, patellofemoral and medial compartment degenerative change, and a small to moderate joint effusion decompressing into a moderate Baker’s cyst;
(e)    left knee x-ray report dated 14 April 2022 (at page 124) which refers to “pain in the knee ? OA” as a history, and which finds degenerative change in the medial and patellofemoral compartments, and a trace of joint fluid;
(f)    left knee MRI scan report dated 9 September 2022 (at page 132) which refers to “recurrent Baker’s cyst and pain” as a clinical history, and which finds an acute subchondral insufficiency fracture of the lateral femoral condyle outer aspect posteriorly, as well as cartilage wear in the lateral femorotibial compartment and the patellofemoral joint, as well as a Baker’s cyst, and
(g)    report from Dr Wegman dated 23 June 2023 (at page 33) in which the applicant’s treating gastroenterologist records him complaining about “a hairline fracture on his left knee on the femur aspect” which “had happened during his exercise physiology”.

Conversely however, the ARD contains contemporaneous reports which do not refer to any complaints made by the applicant about left knee symptoms - specifically the report from
Dr Bokor (following an examination arranged by the respondent’s insurer) dated 28 July 2022 (at page 134) and the reports from Dr Burne (a treating sport and exercise physician of the applicant’s, specifically treating his shoulders) dated 21 March 2022, 25 May 2022, and
18 July 2022 (respectively at pages 348, 349, and 350).
It is also relevant to note that there are a number of certificates of capacity in the ARD (between pages 355 and 390) authored by Drs Hameiri or Akram. These certificates of capacity only begin to refer to a left knee condition of the applicant’s from 21 September 2022.
As for the clinical records contained in the ARD, there are records from Dr Tan (SportsMed) from page 158, and records from the applicant’s physiotherapist (Health Space) from page 276. I have reviewed these records and will largely refer to them further only if directed specifically to them during the parties’ submissions. I do however note the following from the physiotherapist’s records:
(a)    21 December 2021 – applicant training 2-3 times per week with exercise physiologist and able to cycle;
(b)    18 January 2022 – applicant training consistently with exercise physiologist and “feels much stronger”;
(c)    2 February 2022 – “been doing foam roller and strength training and knees have been sore lately”;
(d)    15 February 2022 – applicant enjoying sessions with exercise physiologist and “continuing to lift heavier weekly”;
(e)    8 March 2022 – “has had L knee bakers cyst drained, pain returning”;
(f)    22 March 2022 – “again has had cust [sic] drained, nil pain since”;
(g)    5 April 2022 – left knee feeling a lot better;
(h)    26 April 2022 – applicant enjoying weights program – his left knee has “not flared up since previous visit’;
(i)    24 May 2022 – no mention of left knee pain;
(j)    21 June 2022 – applicant has been training consistently, enjoying long cycle rides of over 100 km, and progressively “lifting heavier each week” - no concerns with left knee or shoulders noted;
(k)    19 July 2022 – no mention of left knee pain, and
(l)    15 September 2022 – applicant experiencing worsening left knee pain and MRI scan revealed a fracture – repetitive lifting is the main cause of the fracture – applicant’s knee movement limited by pain and discomfort.
Finally, the ARD contains a report from Dr Bodel dated 3 November 2022 (at page 21).
The only history taken by Dr Bodel in relation to the applicant’s left knee condition is that he developed “some pain” in late 2021 while undertaking his rehabilitation treatment for his neck and shoulder injuries. He now wears a knee guard and complains of anteromedial knee pain. He cannot kneel, squat or climb. He used to ride his bike up to 300km per week, but only now rides a stationary bike for up to 20-30 minutes at a time. He has a mild left-sided limp and cannot fully extend his left knee when standing in an erect position.
Dr Bodel does not otherwise provide opinions regarding the applicant’s left knee condition, although he does assess the condition as causing the applicant 4% whole person impairment.

Respondent’s evidence

Much of the evidence presented in the Reply also relates to the applicant’s accepted injuries to his shoulders and neck, or to the applicant’s claims for weekly benefits compensation or expenses pursuant to s 60 of the 1987 Act. I have considered all the evidence, but will be concentrating on reviewing the specific evidence relevant to the issue that I need to determine regarding the applicant’s left knee condition.
In that respect, it seems to me also that much of the evidence in the Reply that is relevant to the issue that I need to determine has already been discussed by me as that evidence was also included in the ARD.
There is however the following evidence in the Reply that I find to be relevant:
(a)    functional capacity assessment report from Healthmarq following assessment on 27 May 2022 (at page 141) - the report records that the applicant had recently experienced left knee pain, which was exacerbated with weighted squatting movements – the pain was localised to the medial aspect and patella, and it affected the applicant’s lifting capacity;
(b)    report from Oliver Meroni (physiotherapist) dated 14 October 2022 (at page 263) which opines it to be highly unlikely that the applicant would develop a subchondral insufficiency fracture as a result of cycling (due to it being a low impact activity) - such fractures occur “due to excessive and repetitive weight bearing of the joint impacting on the bone”, and
(c)    reports from Dr Chow dated 22 November 2022 and 10 January 2023 (at pages 266 and 264 respectively) in which the applicant’s treating pain specialist diagnoses “chronic left knee musculoskeletal pain with osteoarthropathy” - the doctor found tenderness over the applicant’s bilateral medial knee joint line.
Finally, the Reply contains reports from Dr Rimmer. The initial report is dated
21 October 2022 and found at page 323. The doctor records the following history:
“He describes as a result of undergoing extensive lower limb exercises via the exercise physiologist ie; repeated squats he injured his left knee. This caused the immediate onset of pain and swelling. He describes since then having undergone 4 aspirations of his left knee performed by his general practitioner.”
The applicant advises the doctor of his ongoing intermittent left knee pain, pointing to the medial aspect of the knee. The doctor records no swelling, locking or instability. On examination, the doctor finds moderate patellofemoral crepitus and mildly diminished quadricep musculature. He does not find abnormal gait, effusion, joint line tenderness, collateral and cruciate ligament issues or reduced range of motion.
The doctor reviews the applicant’s left knee MRI scan report dated 9 September 2022 (see paragraph 39(f) above) and diagnoses the applicant with an aggravation of patellofemoral degenerative arthritis of his left knee. He notes the applicant to be symptomatic and suggests the need for a cortisone injection. Despite being asked to, the doctor does not specifically address the issue of the causation of the applicant’s left knee symptoms, but he does state:
“He claims as a result of undergoing exercise physiology in January 2022 he was requested to perform leg strengthening exercises (this is beyond comprehension given the fact the only anatomic sites that were injured were his shoulders) [emphasis in original]. As a result of repetitive squatting he claims he injured his left knee!!”
Dr Rimmer’s second report is dated 22 November 2022 and found at page 343 of the Reply. The doctor reviews the images from the applicant’s 9 September 2022 MRI scan, and concludes that there was “definitely” no radiological evidence of a subchondral fracture, but only evidence of mild patellofemoral degenerative osteoarthritis.
The doctor opines that the applicant would not have been able to cycle over 100km with a subchondral fracture and that:
“He claims as the result of participating in exercises with the exercise physiologist he injured his left knee. The date nominated by Mr Walton was January 2022. Given the fact that he is now able to cycle over 100 kms at a time, in conjunction with the exercise physiologist timeline, would indicate Mr Walton has made a complete recovery from a trivial injury to his left knee which technically was secondary to his workplace injury, however, has well and truly ceased given the reasons above.”
Dr Rimmer then provides a third report dated 12 May 2023, which is found at page 346 of the Reply. The doctor’s examination findings in the report are identical to the examination findings mentioned in his first report. He does however now record that the applicant’s left knee symptoms have improved since the first report, as he is now able to cycle on average 150km per week.
The doctor diagnoses the applicant’s left knee condition as a “resolved musculoskeletal strain”, and when specifically asked if “the worker’s employment was a substantial contributing factor to his injuries”, the doctor answers in the negative but only provides the following explanation:
“As you have highlighted the history provided by Mr Walton with regards to his left knee injury has varied, and therefore I do not believe his left knee injury is connected to his initial shoulder injury. This is in the background that at the time of his initial assessment with myself, he was riding his pushbike 100 kms a week, which has now progressed to 150 kms.”

Respondent’s submissions

The respondent agreed to make its oral submissions first. The submissions have been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The respondent emphasises Dr Muratore’s recordings of anterior (rather than posterolateral) pain in the applicant’s left knee. The respondent also emphasises the lack of pathology found by Dr Muratore in the left knee (see paragraphs 37-38 above).
The respondent notes that there is no commentary in the medical evidence regarding causation of the applicant’s Baker’s cyst in his left knee, or regarding the degree to which the cyst was responsible for the applicant’s symptoms of left knee pain. There is for example no report from the applicant’s treating general practitioner in this regard.
The respondent then criticises Dr Bodel’s report on the basis that the doctor did not have access to the applicant’s left knee MRI scan, and also on the basis that the report does not make any findings as to causation of the applicant’s left knee condition. The respondent however also emphasises that the doctor takes a history of anterior (rather than posterolateral) pain in the left knee – see paragraph 44 above.
The respondent advises that it does not focus upon the discrepancy between the applicant and Nick Barry regarding the nature of the squats that he performed during exercise physiology (see paragraph 33 above). The respondent does however refer the Commission to both Nick Barry’s report (see paragraph 32 above) and the clinical records from Health Space (see paragraph 42 above) to submit that there was a deterioration in the applicant’s left knee condition between 21 June 2022 and 15 September 2022, which would reasonably explain the new pathology of the insufficiency fracture of the lateral femoral condyle posteriorly, shown in the applicant’s left knee MRI scan report dated 9 September 2022. Prior to 21 June 2022, the respondent submits that the records show a lack of ongoing left knee pain and that the applicant was progressing well with his treatment and training, including long cycle rides and heavy lifting.
The respondent asks the Commission to draw an inference and “find something happened to cause the insufficiency fracture later in time”, especially as the applicant’s complaints of left knee pain were originally anterior or medial, rather than posterior.
The respondent then reviews Dr Rimmer’s reports and submits that while he initially diagnosed the applicant with an aggravation of patellofemoral degenerative arthritis of his left knee (see paragraph 51 above), he subsequently opined that the aggravation was no longer having any ongoing effect (see paragraph 53 above).
The respondent is then questioned by me as to why this opinion of Dr Rimmer (as well as
Dr Muratore’s opinion that the applicant developed muscular pain from his exercise physiology) did not assist the applicant’s argument that a left knee injury occurred during the exercise physiology, especially as it was my view that I did not need to make any findings in relation to the specific nature of any left knee injury in this regard, but just that physiological change had initially occurred. The respondent submits that I was still left to ponder what caused the left knee pain in early 2022, in circumstances where there were different pathologies involved, being the Baker’s cyst, the insufficiency fracture referred to in the
9 September 2022 left knee MRI scan report, as well as the potential aggravation of degenerative change in the left knee found in the applicant’s 23 February 2022 left knee CT scan report.
The respondent refers to Shao Wen Zheng v Guo Yong Yang & Ors [2008] NSWWCCPD 144 (Shao) and quotes Roche DP [at 81]:
“Where direct proof is not available it is possible to draw an inference from known facts. However, those facts must do more than ‘give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture’ (per Dixon J (as he then was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd (unreported, High Court, 27 April 1951), cited by Williams, Webb and Taylor JJ in Holloway v McFeeters [1956] HCA 25: 94 CLR 470 at 480-481). The law ‘does not authorise a court to choose between guesses’ (per Dixon CJ in Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305).”
The respondent in effect submits that the Commission would be guessing if it found a left knee injury due to the applicant’s exercise physiology. The respondent also refers the Commission to the need for it to feel actual persuasion in order for the applicant to overcome his onus in showing that his left knee injury arose following his exercise physiology – the respondent refers to Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).

Applicant’s submissions

The applicant’s submissions have also been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.

The crux of the applicant’s submissions is that it is not the Commission’s role to make a finding as to the diagnosis of the applicant’s left knee injury. The “bar is not very high”, and it is sufficient if I accept the applicant’s complaints of pain, in order to find an injury. These complaints are evidence of physiological change, which are then supported by both
Drs Muratore and Rimmer. The applicant specifically relies upon the quote from Dr Rimmer’s report referred to at paragraph 53 above.
There is no suggestion of any left knee symptoms experienced by the applicant prior to his exercise physiology sessions, but there is plenty of evidence (complaints to Nick Barry, complaints to Health Space, as well as the arranging of both x-rays and a CT scan) for the Commission to be comfortably satisfied of left knee complaints leading to regular treatment during the “critical” period around February 2022. The complaints of pain were so significant that they led to radiological scans as well as changes to the applicant’s exercise physiology sessions. The radiological scans revealed degenerative change not just a Baker’s cyst. This pathology then progressed to the findings of cartilage wear and an insufficiency fracture in the applicant’s 9 September 2022 MRI scan.
The applicant also emphasises:
(a)    the opinions (see paragraphs 35(c) and (d) above) of his treating specialist,
Dr Tan, which indeed provide a causation link between the exercise physiology and the applicant’s insufficiency fracture;
(b)    the opinion (see paragraph 48(b) above) of the applicant’s physiotherapist that his insufficiency fracture would not have developed from cycling, but would have developed due to weight-bearing;
(c)    the opinions of Drs Bodel and Chow (which contrast with Dr Rimmer’s opinions) accepting the applicant’s ongoing complaints of left knee pain and symptoms, as well as tenderness and restrictions - see respectively paragraphs 44 and 49(c) above), and
(d)    the applicant’s statement evidence – which has not been challenged by the respondent.
Finally, the applicant submits that the exercise physiology sessions that he was undertaking in late 2021/early 2022 resulted from referrals from practitioners who were treating him for his accepted cervical spine and shoulder injuries. Accordingly, injuries suffered during those sessions would ‘result from’ those accepted injuries, to make them compensable as consequential conditions. Following this submission, I questioned the respondent regarding whether it put in issue this link between the accepted injuries, the exercise physiology sessions, and any injuries suffered during those sessions. The respondent advised that it did not do so.

Respondent’s submissions in reply

These submissions have also been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The respondent makes the following points:
(a)    in relation to the applicant’s submission that the MRI scan report of
9 September 2022 demonstrates a progression of pathology of his left knee (see paragraph 68 above), the respondent submits that the applicant has provided no commentary regarding the causation of that progression;
(b)    in relation to the applicant’s reliance upon Dr Tan’s opinion, the respondent submits that the doctor understood the applicant’s complaints of pain in
February 2022 to involve the posteromedial aspect (see paragraph 35(c) above), whereas the contemporaneous complaints of pain involved the anterior or medial aspects – the respondent therefore submits the applicant’s complaints of pain to Dr Tan to be a “new manifestation of pathology”;
(c)    the respondent submits that when the Commission asks itself as to what is the pathology that caused the applicant’s complaints of left knee pain to Dr Muratore, it should consider itself “not instructed upon whether it was one part of the found pathology or another”, and
(d)    the respondent submits that the applicant has therefore not discharged his onus of establishing a left knee injury as resulting from his exercise physiology sessions, to the degree required by Nguyen.

FINDINGS AND REASONS

Did the applicant sustain a consequential injury to his left knee, resulting from his accepted 22 March 2020 (deemed date) injury, during exercise physiology sessions in late 2021/early 2022

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In this regard, in Kumar v Royal Comfort Bedding Pty Limited [2012] NSWWCCPD 8 (Kumar), Roche DP provided a useful summary of what was said by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) [at 46-48]:
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that ‘[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate’. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463–464:
‘The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.’
His Honour concluded that the Court was left with ‘an unbroken chain of undisputed evidence’. In combination, the facts went ‘beyond mere predisposing circumstances’. They combined to make it ‘proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train’. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”

In Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon), Roche DP stated:
“44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
As discussed in Moon, all the applicant has to establish is that he has a left knee condition that has resulted from the accepted injuries to his cervical spine and shoulders. The applicant attempts to establish this by alleging that the injuries to his cervical spine and shoulders led to him requiring exercise physiology sessions, which in turn led to left knee symptoms. Whether the applicant can establish this is (as noted by Kirby P in Kooragang) a question of fact to be determined following a “commonsense evaluation of the causal chain”, on the basis of the evidence, including, where applicable, expert opinions.
Despite Dr Rimmer’s lack of “comprehension” as to why Nick Barry requested the applicant to perform leg exercises (see paragraph 51 above), the respondent does not dispute (see paragraph 70 above) the link between the accepted injuries and the exercise physiology sessions undertaken by the applicant in late 2021/2022. The applicant’s treating specialist for his shoulder injuries, Dr Tan, recommended this treatment (see paragraph 35(a) above) and the treatment was approved by the respondent followed a request from Nick Barry (see paragraph 28 above). The applicant would not have been undergoing the treatment but for his accepted cervical spine and shoulder injuries.
A commonsense evaluation of the causal chain in my opinion reveals an unbroken chain between the applicant’s accepted cervical spine and shoulder injuries and any left knee injury that I find resulted from his exercise physiology sessions with Nick Barry.
To establish that the applicant sustained a left knee injury resulting from those exercise physiology sessions, a sudden and ascertainable or dramatic physiological change or disturbance of the applicant’s normal physiological state needs to be established – Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), and Galluzzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82.
In Kear, Roche DP observed [at 60]:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change.”
Further, in North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead), Roche DP observed [at 81]:
“It follows that the description of a personal injury as ‘a sudden identifiable pathological change’ is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain. If the personal injury also aggravates a pre-existing disease, that does not mean it is no longer a personal injury.”
The applicant submits that his statement evidence was unchallenged by the respondent, and should therefore be accepted by me. I agree with this submission and accept the applicant as a witness of truth. The applicant has been consistent in his reporting (to various medical practitioners) of his left knee symptoms being due to the squats and other exercises that he performed during his exercise physiology sessions. There is no evidence that he had any left knee symptoms prior to commencing his exercise physiology sessions, and there is also no evidence of any event occurring after the completion of those sessions which would cause symptoms.
I reject the respondent’s submissions at paragraphs 60-61 above, and I refuse to draw the inference requested by the respondent in this regard. In my opinion, to draw such an inference would be a guess or a ‘mere matter of conjecture’, which I am warned about in Shao. The inference would not be able to be drawn from known facts.
Indeed, the only evidence that specifically deals with any causal relationship between an insufficiency fracture and the squatting and other exercises that the applicant performed during his exercise physiology sessions, is the evidence from Dr Tan (see paragraph 35(d) above), the evidence from Oliver Meroni (see paragraph 40(b) above), and the evidence from Health Space (see paragraph 42(l) above). Dr Rimmer does not specifically deal with the causal relationship because he does not believe that the applicant has in fact sustained an insufficiency fracture. Dr Tan however opines that the exercises caused excessive load and were thus “the only precipitant” to the insufficiency fracture, and Oliver Meroni discounts cycling as a cause of the fracture believing it to be due to excessive or repetitive weight bearing (which would include the weight bearing that occurred during the exercises). The Health Space clinical records also state repetitive lifting to be the main cause of the fracture.
I note that the respondent (correctly in my opinion) has not sought to attack the credibility of the applicant on either of the following bases:
(a) the applicant did not report his left knee symptoms to Drs Bokor and Burne (see paragraph 40 above) - there is however plenty of other contemporaneous reporting of those symptoms (see paragraphs 39, 42, and 48 above), and
(b) there is a discrepancy between the applicant and Nick Barry regarding whether he performed a goblet squat during his exercise physiology sessions (see paragraph 33 above) - Nick Barry does however concede that 25kg floor to waist lifts did occur (see paragraph 28 above), which I consider to be considerable lifts which would put significant strain on the applicant’s knees in any case.
The only real inconsistency in the applicant’s evidence relates to the specific area of his left knee where he has reported pain. In this regard:
(a)    Dr Tan records (see paragraphs 35(c) and (d) above) pain over the posteromedial aspect;
(b)    Dr Muratore records (see paragraph 37 above) pain in the anterior aspect;
(c)    the Actual Rehab report (see paragraph 39(a) above) records incorrect patella tracking;
(d)    Dr Bodel records (see paragraph 44 above) anteromedial knee pain;
(e)    the Healthmarq report (see paragraph 48(a) above) records pain localised to the medial aspect and patella;
(f)    Dr Chow records (see paragraph 48(c) above) pain over the medial knee joint line;
(g)    Dr Rimmer records (see paragraph 50 above) the applicant pointing to the medial aspect when describing his pain, and
(h)    in his statement evidence, the applicant refers to feeling discomfort during his exercise physiology sessions over the posteromedial aspect.
I am not convinced as to the relevance of these inconsistencies. It seems to me that the most likely explanation is that the applicant developed pain in both the anteromedial and posteromedial aspects of his left knee following his exercise physiology sessions, but that the pain was reported (or recorded) in a different manner on different occasions.
In any case, I consider the inconsistencies to be less relevant to my decision-making than the applicant’s consistent history of informing medical practitioners (including Drs Muratore, Rimmer, Tan, Wegman and Chow, as well as Nick Barry, Health Space, Actual Rehab, and Healthmarq) of his left knee pain and symptoms developing specifically following the exercises that he was asked to perform during his exercise physiology sessions.
The applicant submits (see paragraph 67 above) that his complaints of pain amount to the necessary physiological change or disturbance, as discussed in Kear and Felstead. The respondent submits (see paragraphs 63 and 72(c) above) that I need to identify the pathology which caused the pain, in circumstances where there is evidence that the pathology may have been a Baker’s cyst, an insufficiency fracture, or degenerative change.
I reject the respondent’s submission. In my opinion, I do not need to determine the precise diagnosis of the applicant’s left knee condition. As Wood DP observed in Corestaff Australia NSW Pty Limited v Lashbrook [2024] NSWPICPD 9 (Corestaff), [at 89]:
“In the present case, the incident said to have caused the injury was consistently described, the medical experts and the Member were appraised of the mechanism of injury and there was clear evidence from the medical experts that the respondent had suffered injury to the various areas. Dr Robinson diagnosed soft tissue injuries, which evidence was uncontested and satisfies the requirement for there to be a physiological alteration of the respondent’s physical state. Even so, as Roche DP observed in Kempsey Shire Council v Kirkman, ‘[t]hough it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker.’ Causation can be established although the precise diagnosis is not known.”
Applying Corestaff:
(a)    the applicant has consistently described (in both his statement evidence and to the various doctors who have examined him) how his left knee symptoms arose from the squatting and other leg exercises that he performed in his exercise physiology sessions;
(b)    Dr Muratore (see paragraph 38 above) has provided the most contemporaneous report in relation to the time when the applicant first sustained his symptoms, and the doctor diagnoses muscular pain (despite the absence of significant examination findings) that on the balance of probabilities is related to the exercise physiology sessions - I consider such a diagnosis to be a physiological alteration of the applicant’s physical state;
(c)    Dr Tan (see paragraph 35(d) above) diagnoses a stress (or insufficiency) fracture at the posterior lateral femoral condyle and sees the nature of the applicant’s squatting exercises as being “the only precipitant” to the fracture - the doctor bases his opinion upon the findings recorded in the applicant’s left knee MRI scan report dated 9 September 2022;
(d)    while Dr Rimmer disagrees with an interpretation that the 9 September 2022 left knee MRI scan reveals an insufficiency fracture (and does not believe that the applicant would have been able to cycle over 100km at the time if the applicant had such a fracture), he nevertheless diagnoses the applicant with an aggravation of patellofemoral degenerative arthritis of his left knee (see paragraph 51 above) - which in his second report he refers to as (see paragraph 53 above) a trivial injury secondary to the applicant’s workplace injury from which the applicant has completely recovered - and which in his third report he refers to as (see paragraph 55 above) a resolved musculoskeletal strain (although his opinion on causation in this report is rather unclear) - I consider such diagnoses to be consistent with a physiological alteration of the applicant’s physical state, even if the doctor is correct that there has been a recovery from the injury;
(e)    Dr Chow (see paragraph 48(c) above) diagnoses chronic left knee musculoskeletal pain with osteoarthropathy, and
(f)    while left knee swelling was not found by Dr Muratore, it was recorded in the applicant’s left knee CT scan report dated 23 February 2022 as well as by
Dr Rimmer – I consider swelling to be consistent with a physiological alteration of the applicant’s physical state.
Due to the conflicting views as to whether the applicant’s 9 September 2022 left knee MRI scan reveals an insufficiency fracture, I am unable to determine the precise nature of the applicant’s left knee injury. What is apparent to me however (from both the applicant’s evidence and the medical evidence) is that the applicant at least sustained physiological change to his left knee (described by Dr Muratore as muscular pain and described by
Dr Rimmer as an aggravation of degenerative arthritis or a resolved musculoskeletal strain) following performing the squatting and other leg exercises that he performed during his exercise physiology sessions in late 2021/early 2022.
The applicant also clearly developed a Baker’s cyst in early 2022. I agree with the respondent (see paragraph 58 above) that there is no evidence linking the development of the cyst to the applicant’s exercise physiology sessions. However, the cyst appears to me to be an additional condition, and its relevance seems to have been largely ignored as significant by Drs Tan, Muratore, Bodel, Chow and Rimmer. In those circumstances, I do not possess the necessary evidence to make any findings regarding the degree to which the cyst was responsible for the applicant’s left knee symptoms in early 2022, compared with the degree to which the physiological change that I have found (whether that change be muscular pain, an insufficiency fracture, an aggravation of degenerative arthritis, a resolved musculoskeletal strain, or musculoskeletal pain) as a result of the applicant’s exercise physiology sessions, was responsible for the symptoms. Any such comparison findings in any case are not necessary in order for me to determine the particular issue that I need to determine. However, I do note that the Baker’s cyst is not recorded as a reason for the applicant’s left knee x-ray on 14 April 2022, and is only recorded as one of the reasons for the applicant’s left knee CT scan on 23 February 2022 (the other reason being pain and swelling).
After considering all the evidence therefore, I do feel an actual persuasion (in accordance with Nguyen) to find that the applicant sustained a left knee injury during his exercise physiology sessions. I find that the injury is more likely than not to have occurred, with a probability in excess of 50%. The medical evidence tendered by both parties, when reviewed carefully, is in my opinion consistent in describing and diagnosing physiological change or disturbance to the normal physiological state of the applicant’s left knee following those exercise physiology sessions, in accordance with Kear and Felstead.
In this regard, I have also considered the observations of Roche DP in Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10:
“103. Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
104.   A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen[1940] HCA 20; (1940) 63 CLR 691 at 712).
105.   Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes[2008] NSWCA 246).
106.   The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
I reject the respondent’s submission based on Shao. In my opinion, there is plenty of medical evidence (including the evidence from Drs Muratore and Rimmer) for me not to be conjecturing or guessing in finding that the applicant sustained a left knee injury during his exercise physiology sessions.
In accordance with the agreement of the parties (see paragraph 15 above), having found that the applicant sustained a left knee injury as a consequential condition resulting from his accepted cervical spine and shoulder injuries, the assessment of the applicant’s whole person impairment as a result of all of his injuries will now be a matter for Medical Assessment.
In this regard, I make no finding as to whether the applicant sustained the insufficiency fracture referred to by Dr Tan (see paragraph 35(d) above), resulting from his exercise physiology sessions. I am of the opinion that this specific diagnosis is best left to the expertise of the relevant Medical Assessor, when determining the level of the applicant’s whole person impairment as a result of the left knee injury found by me. Whether this injury found by me has led to the insufficiency fracture is, in my view, and consistent with the decisions in Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited [2014] NSWCA 264 (Bindah) and Jaffarie v Quality Castings Pty Limited [2014] NSWWCCPD 79 (Jaffarie), within the province of the Medical Assessment process when the relevant Medical Assessor comes to assess the whole person impairment of the applicant resulting from the injury to his left knee. This is especially so in circumstances where that Medical Assessor can review the films in relation to the applicant’s left knee MRI scan on 9 September 2022, to determine whether the scan reveals the insufficiency fracture (as suggested by Dr Tan and the report in relation to the scan) or not (as suggested by Dr Rimmer).
Applying Corestaff, Bindah and Jaffarie, it is not necessary for me to make a determination about the precise nature of an injury. As Emmett JA said in Bindah [at 119]:
“Consequently, Order 3 of the Certificate of Determination on 21 November 2011 simply recorded the arbitrator's determination that Mr Bindah had incurred an [emphasis in original] injury. That determination involved a conclusion on a matter of causation, being that Mr Bindah's employment was a substantial contributing factor to his injury. The arbitrator did not need to make a determination about the precise nature of the injury, because that matter fell within the province of a medical dispute, which was for the approved medical specialist, and, if necessary, the Appeal Panel, to determine...It was then for the approved medical specialist to determine the degree of permanent impairment that resulted from [emphasis in original] the injury. That determination involved a conclusion on a matter of causation, as indicated by the words in bold.”

SUMMARY

I find that the applicant has sustained a consequential injury to his left knee resulting from his accepted 22 March 2020 (deemed date) injury, during exercise physiology sessions in late 2021/early 2022.
In accordance with the agreement between the parties, the applicant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act in relation to the 22 March 2020 injury will now be remitted to the President of the Commission for referral to a Medical Assessor, in order for that Medical Assessor to assess the level of the applicant’s whole person impairment in relation to his cervical spine, right upper extremity (shoulder), left upper extremity (shoulder), and left lower extremity (knee).
Following the completion of the medical assessment process, the dispute will be listed back before me for a further preliminary conference, in order to conciliate, and if necessary determine, any outstanding claims in the ARD.

[2024] NSWPIC 107

7 March 2024